IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on  : 02.09.2022 DATED : 16.09.2022

CORAM :

THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

Crl.R.C.Nos.1136 and 1137 of 2022

Petitioner in

Tangkeswaran   .. Crl.R.C.No.1136 of 2022

Petitioner in

T.Nandhini        .. Crl.R.C.No.1137 of 2022

Vs

Senior Intelligence Officer

Directorate of Revenue Intelligence

Regional Unit

1103, Trichy Road

Coimbatore – 641 018.                                                         ..        Respondent

Prayer in Crl.R.C.No.1136 of 2022: Criminal Revision Case filed under Section 397 read with 401 Code of Criminal Procedure, to call for the records in and connected with the CMP.No.20975 of 2022 in

F.No.DRI/CRU/VIII/48/ENQ-1/INT-2/2022-CBE on the file of the Chief Judicial Magistrate, Coimbatore at 01.08.2022 and set aside the same and cause return of the Malaysian Passport bearing No.A55506477;

Prayer in Crl.R.C.No.1137 of 2022: Criminal Revision Case filed under Section 397 read with 401 Code of Criminal Procedure, to call for the records in and connected with the CMP.No.20974 of 2022 in

F.No.DRI/CRU/VIII/48/ENQ-1/INT-2/2022-CBE on the file of the Chief Judicial Magistrate, Coimbatore at 01.08.2022 and set aside the same and cause return of the Malaysian Passport bearing No.A55506479.

For Petitioner		Mr.B.Kumar
in both Crl.R.Cs	:	Senior Counsel for Mr.B.Satish Sundar
For Respondent	:	Mr.N.P.Kumar Special Public Prosecutor

O R D E R

On 29.04.2022, the Directorate of Revenue Intelligence, Coimbatore received a secret information that four Malaysian passengers, traveling by Scoot Airlines, Flight No.TR540 from Singapore to Coimbatore are likely to carry Gold with an intent to smuggle it to India without payment of the applicable customs duty. Upon such information, surveillance was monitored and the four passengers were identified and upon search, there was nothing found in respect of two passengers and they were allowed to go, while, in respect of Tangkeswaran, bearing Malaysian Passport No.A55506477 and one Nandhini Tangkeswaran bearing of Malaysian Passport No.A55506479, in two parcels in their bags, covered with white color adhesive tapes,  were found to be gold bars weighing 2.1kgs each, totaling to 4.2kgs were seized. Before the seizure, the said persons answered that they did not have any such material with them. Therefore, the said persons were arrested and remanded to custody, pending adjudication proceedings as well as pending criminal prosecution by the authorities under the Customs Act.

2. While so, after being released on bail, the said two Malaysian nationals have filed Crl.M.P.Nos.20974 and 20975 of 2022 for return of their respective passports to them. The same was resisted by the respondent / prosecution on the ground that the petitioners have to face the criminal prosecution and being Malaysian nationals, the passports cannot be returned to them as they would flee justice. After considering the materials on record and the submissions on either side, by an order dated 01.078.2022, the learned Chief Judicial Magistrate, Coimbatore dismissed both the applications. Aggrieved by the same, the present revisions are

filed.

3. Heard B.Kumar, learned Senior Counsel appearing on behalf

of the petitioners and Mr.N.P.Kumar, learned Special Public Prosecutor appearing on behalf of the prosecution.

4. Learned Senior Counsel would submit that this is a case in which the petitioners are alleged to have brought in 2.1kgs of Gold each and the allegation is that they have evaded duty. Therefore, the said Gold, weighing 4.2kgs are already seized by the authorities and therefore, it would be in their best interest to appear in the adjudication proceedings as even as per the prosecution the same is of the total value of Rs.4.58 crores. Further, even though they are foreign nationals, they are persons of Indian origin having connections and roots in India and therefore, will not flee justice and even if allowed to go back to their country, will come back and face the trial. It may be seen for the said violation, they are forcibly living in India from 29.04.2022 onwards. In this factual background, learned Senior Counsel would submit that in the instant case, there is no bail condition which was imposed on the petitioners/accused to surrender the passports. The learned Senior Counsel would also take this Court to the bail orders granted from which it is clear that there is no condition imposed by the Bail Court. Once the passports are not surrendered by the petitioners, pursuant to any directions of the Court in bail order, then, absolutely the respondents, namely, the Customs Authorities have no power whatsoever to seize the passports.
5. In this connection, learned Senior Counsel would rely upon the judgment in Thanapal Vs Assistant Collector of C.E.¹, wherein it has been held that the Customs Authorities have no right to seize the passport under Section 110 of the Customs Act. The learned Senior Counsel further relied upon the judgment of this Court in Sri-la-Sri Arunagirinathar Sri Gnanananda Desika Paramachariya Swamigal, Madurai Vs State of Tamil Nadu and another², morefully relying upon paragraphs 7 to 9 of the said judgment for the proposition that no person can be prevented from traveling abroad, unless the passport is impounded in the manner known to law by the Regional Passport Authority, which would be only under Section 10 of the Passports Act. In the absence of the said proceedings, the holding of passports by other authorities are illegal. Learned Senior Counsel further relied upon the judgment in Suresh Nanda Vs Central Bureau of Investigation³, morefully relying upon paragraph 14 to 16 to press the proposition that even under Section 102(1) of the Code of

• 1988 (36) E.L.T.421 (Mad.)
• 1987 SCC OnLine Mad 15
• 2008 SCC OnLine SC 168

Criminal Procedure, the police does not have the power to impound the passport, wherein, the Hon’ble Supreme Court of India has laid down differences between seizing of the documents and impounding the documents. Even after the documents is to be seized, the passport has to be only impounded and that could be done only by a Passport Authority under Section 10(3) of the Passports Act.

6. Learned Senior Counsel also further relied upon the judgment in

Avinash Bhosale Vs Union of India⁴, which also follows  Suresh

Nanda’s (supra) case. In M.Ramachandar Singh Vs Inspector of Police, Chennai⁵ the learned Judge has held that for the mere purpose of ensuring the presence of the accused for prosecution, the passport need not be withheld but, can be returned with appropriate conditions. Similarly, in another judgment of this Court in P.Mahesh Vs State⁶, this Court had ordered the return of passport with appropriate conditions. The Learned

Senior Counsel further relied upon the Division Bench Judgment of this Court in Aircel Cellular Ltd. and others Vs Union of India⁷, morefully relying upon paragraph 49 of the said judgment for the proposition that

• 2008 SCC OnLine Bom 1354
• 2011 (268) E.L.T.364 (Mad.)
• 2019 SCC OnLine Mad 10186
• 2016 SCC OnLine Mad 8463

what the respondent authorities cannot be permitted to do directly, they cannot be permitted to do indirectly. Therefore, the learned Senior Counsel prayed that the passport should be directed to be returned to the

petitioners.

7. Per contra, Mr.N.P.Kumar, learned Special Public Prosecutor, by relying upon the counter affidavit filed in the revisions, would submit that the petitioners are foreign nationals. When they arrived at the Airport, it was found that they were indulging in smuggling of Gold bars, therefore they were arrested. At the time of arrest, the petitioners have left their passports at the desk of the officers and therefore for the safe custody, the same is produced before the Court, hence it is not a case of seizure. The learned Special Public Prosecutor would submit that the original contention in the revisions that the prosecution is yet to be launched is incorrect because already the complaint is filed and is taken on file in CC.No.1698 of 2022 by the learned Chief Judicial Magistrate, Coimbatore for the offence under Sections 135(1)(a) and 135(1)(b) of the Customs Act. Therefore, the petitioners are facing serious charges punishable with maximum imprisonment of five years. Therefore, if the passports are now returned to the petitioners, they would return back to their country and thereafter will never return to face the trial.
8. I have considered the rival submissions made on either side and perused the material records of this case.
9. At the outset, it is essential for this Court to delineate the legal positions regarding the claim of the petitioners:

• As held by this Court in Thanapal Vs Assistant Collector of C.E.^[1], followed by the subsequent judgments, it may be seen that the respondent authorities do not have the power to seize the passport under Section 110 of the Customs Act;
• It is also correct to contend that the respondent authorities do not have the power to impound the passports.

But, however, as far as the right of the petitioners to travel is concerned, firstly all the judgments relied upon by the learned Senior Counsel  are of judgments relating to Indian citizens. As a matter of fact, the citizens of India have the right to travel abroad unless their passport is impounded under the Passports Act. As a matter of fact, the word “passport” is defined under Section 2(b) of the Passports Act and as per the same, it means the passport issued under the Act. Therefore, the contention of the learned Senior Court that the passport of the petitioners can be impounded only by the passport Authorities is incorrect, as the passports of the petitioners are not issued under the Indian Passports Act, 1967 and therefore, the Regional Passport Authorities cannot impound the same in exercise of the powers under Section 10 of the Act.

10. Whenever foreigners are involved, in order to make them to face the criminal case, two courses are open. Firstly, as held by this Court in S.T.Gomer Vs Assistant Collector of Customs⁸, the Criminal Court has power to withhold / impound the passport in case of grave offences and in case of the foreigner, when there is a likelihood of his fleeing from justice. It is useful to extract paragraph 3 to 8 of the judgment which categorically clinches the issue:

“3. Mr.Kumar, learned counsel for the petitioner, relied on Thanapal Vs The Assistant Collector of Central Excise, Madras (1986 LW (Cri) 114), wherein David Annoussamy, J. While considering the seizure of the passport along with the other articles of the petitioner therein, a foreigner, by the Customs Department, directed return of the passport since the seizure of passport  by a Customs Officer was not permissible. A passing reference was also made by the learned counsel for the petitioner to Satwant Singh Vs

8        1989 SCC OnLine Mad 506

Assistant Passport Officer, New Delhi (AIR 1967 SC 1836), wherein the Supreme Court had observed that the right to travel abroad was a fundamental right, in the absence of law regulating such a right, refusal of a passport or withdrawal of one given, would violate Arts. 14 and 21 of the Constitution.

4. Rajamanickam, per contra, placed reliance on the decision of S.A.Kader, J. In the Assistant Controller of Customs House, Madras Vs Abdul Samathu (1985 LW (Cri) 48) and two unreported decisions of this Court rendered by Sengottuvelan, J., in

Crl.M.P.No.4936 of 2985 and Padmini Jesudurai, J. in

Crl.M.P.No.2520 of 1987 which hold that the Criminal Court undoubtedly had the power to withhold or impound the passport of any person, more so of a foreigner, accused of a grave offence when there is every likelihood of his leaving the country and making a mockery of the judicial process against him.

5. Let me now consider the rival contentions of the learned counsel on either side. David Annoussamy, J., in Thanapal’s case, (1986 LW (Cri) 114) while holding that the seizure of passport by the Customs Officer was not covered by Section 100 of the customs Act and that the seizure was illegal, observed that it was open to the respondent (Customs Department) to move the competent Court to modify the conditions of bail to the extent desired, so that if the Court thought fit to secure the accused person as and when required, condition could be stipulated that the petitioner shall not leave the country and , to ensure fulfilment of the condition, order the surrendering of the passport to the Court. This salutary observation made by this Court must be observed by the Customs Department, so that it could be a complete answer for petitions filed for return of passport and for permission sought to go out of the country, pending disposal of a prosecution.
6. In the light of the several decisions brought to my notice as aforementioned, it is clear that if the circumstances so warrant, the Criminal Court has undoubtedly the power to with-hold the passport or to impound it in cases of grave offences and more so in a case of a foreigner when there was likelihood of his fleeing from justice.
7. None of the submissions made by Mr.Kumar can be taken very serious note of, for humanitarian or other considerations cannot prevail over the paramount duty of a Court to ensure a speedy trial and towards that end, consider the need of the petitioner’s presence before the trial Court. The purpose for which the petitioner seeks permission to go out of India does not appear to be one of grave emergency and especially when the complaint is stated to be ready for institution. there will be no difficulty in directing the Trial Court to take up the case for trial as early as possible, after the institution of the complaint and dispose it of as expeditiously as may be feasible.
8. As long as a criminal court has the power to withhold the passport and the passport is now in the custody of the trial Court and the need for withholding has arisen only because of the act of the petitioner in getting himself involved in alleged smuggling, the difficulties of his own making cannot enure in his favour, though under Article 21 of the constitution, no person can be deprived of his right to travel, except according to the procedure established by law, the decisions of the Supreme Court in Satwant Singh Vs Assistant Passport Officer, New Delhi, (AIR 1967 SC

1836) and Maneka Gandhi Vs Union of India, (1978-2S.C.R.621) had not touched or affected the powers of a Criminal Court to withhold or impound the passport of a person accused of an offence if he is likely to leave the shores of the country and make good his escape from the clutches of law. On th facts of his case, the petitioner has still a condition to obey viz., to report before the respondent and further his passport has been withheld by the Criminal Court in view of is involvement in an offence under the Customs Act. The complaint against the petitioner is ready to be instituted and the trial could be expedited. In view of the reasoning aforementioned, there is no grouind made out for either the return of the passport or granting permission to the petitioners to go to Sri Lanka, on return of the passport. This petition is dismissed.”

10. The second course open is the invocation of the Foreigners Order, 1948 which is issued in exercise of the powers under Section 3 of the Foreigners Act, 1946 in and by which, under Order 5(2)(b), leave can be refused by a Civil Authority if it is satisfied that the foreigner’s presence is required in India to answer the criminal charge. The said provision is extracted hereunder for ready reference:

“……

5. Power to grant permission to depart from India:(2) Leave shall be refused if the civil authority is satisfied that :-

(b) The foreigner’s presence is required in India to answer a criminal charge;……”

11. In this case, the respondent / Customs Authority therefore have the above two options, that can either to request the Authority under the Foreigners Act to refuse leave to the petitioners to leave India, as they are facing criminal charge or persuade the Criminal Court to impound / withhold the passport.
12. Accordingly, when the petition has been filed by the petitioners, they have pleaded to the Court to withhold the passport. Accordingly, learned Chief Judicial Magistrate has considered the likelihood of the petitioners fleeing justice and considering the seriousness of the charges faced by them, withheld the passport. The decision of the learned Chief Judicial Magistrate is in accordance with the dictum led by this Court in T.Gomer (supra).

13.Therefore, I do not find any merits in the revisions and accordingly, the revisions stand dismissed. However, since the petitioners are precluded from leaving for their own country, the learned Chief Judicial Magistrate, Coimbatore is directed to dispose off the CC.No.1698 of 2022 as expeditiously as possible, in any event, not later than six months from the date of receipt of the copy of this order.

Index : yes/no          16.09.2022

Speaking/Non-speaking order drm To

1. The Chief Judicial Magistrate, Coimbatore.
2. The Senior Intelligence Officer

Directorate of Revenue Intelligence

Regional Unit     1103, Trichy Road

Coimbatore – 641 018..

3. The Public Prosecutor, High Court of Madras.

D.BHARATHA CHAKRAVARTHY, J.

drm Crl.R.C.Nos.1136 & 1137 of 2019

16.09.2022

[1] 1988 (36) E.L.T.421 (Mad.)